Collecting Support

Sometimes a parent ordered to pay support for his or her minor children will ignore the order. If a parent wants to judicially establish the exact amount in arrears, he or she should consider bringing a motion before the court to determine the amount due (Motion for Determination of Arrearages). The amount determined to be due may include interest on the unpaid amount at the rate of 10% per annum.

The methods of enforcing the child support order are:

1. Wage Assignment Order: By statute, unless the parties otherwise agree, a court must now issue a Wage Assignment Order when an order for child support is made (Family Code §5230(a)). This type of order requires the payor parent’s employer to directly pay, out of the payor parent’s periodic income, the amount of child support ordered by the court.

2. District Attorney Family Support Division: If you are having difficulty collecting a child support debt, a simple method to commence the collection process is to open a child support case with the District Attorney, Family Support Division. If you are a recipient of public assistance, you are deemed to have already assigned your right to support to the Family Support Division of the District Attorney’s Office or to the State of California. The Family Support Division will open a case file upon receipt of a referral from the Social Services Agency. If you are not receiving public assistance, you can request an "Application For Services" to be sent to you. You should try to provide the Family Support Division with as much information as possible about the non-custodial parent. Helpful information includes:

* The full legal name and address of the non-custodial parent;

* The date of birth and a physical description of the non-custodial parent;

* The Social Security Number of the non-custodial parent (check the non-custodial parent’s paystubs, income tax returns, credit applications, loan papers, insurance and health records, union records or military records;

* The date of marriage (if any) (check other state records if necessary);

* Child support court order;

* Name and address of non-custodial parent’s most recent employer;

* Information on the non-custodial parent’s assets.

It is important to remember, however, that in any child support collection case, the District Attorney is not acting as the attorney for any individual. The District Attorney represents the county. Therefore, there is no attorney-client privilege or confidentiality between the District Attorney and you.

Intercept Programs:

Money owed by the government to a payor spouse who has defaulted in payments of child support can be "intercepted." Sources of funds for interception are Unemployment or Disability Insurance Programs, and IRS and FTB refunds.

Twenty-five (25%) of a payor parent’s unemployment or disability insurance may be intercepted as payment for court-ordered child support if there is an outstanding child support arrearage of $150.00 or more for two (2) or more months. The Family Support Division will consider reducing the 25% rate if payments are brought current, or if the intercept amount is more than the monthly payment obligation, or if the payor spouse has custody of the child or children for whom support has been ordered (written proof is necessary).

The IRS may intercept tax refunds to the payor parent if the arrearage owed to the county is more than $150 or if more than $500 in arrears is owed to the custodial parent, and the child(ren) is/are living in the custodial parent’s home, and is/are under the age of 19 on December 31 of the year of the intercept.

The Franchise Tax Board will intercept tax refunds to the payor parent if the arrearage balance owed to the county or to the custodial parent is $100 or more.

The Family Support Division will send out a "Pre-Offset Child Support Warning Notice" to the payor parent during the last week of October to warn the payor of the amount of any impending interception due to unpaid child support.

In addition intercept programs, state issued licenses (driver’s license, law license, etc.) may be denied to defaulted child support obligors. Pursuant to Welfare and Institutions Code §11350.6, an individual owing child support may have his or her driver’s license suspended due to an unpaid support obligation. Driving on a suspended license can result in tickets, fines, and possible forfeiture of the driver’s vehicle for sale (Vehicle Code §14607.6a and §14607.6c). If the obligor can settle his or her case with the Family Support Division or make payment arrangements, driving privileges may be reinstated. The case can be reviewed in court if the obligor believes the payment demanded is incorrect.

3.Writ of Execution:If payee can locate assets of the obligor parent, it is possible to obtain a court issued writ of execution to seize non-exempt assets to satisfy the debt. The payee may be able to levy directly on a bank account of the obligor, or may be able to seize a tangible asset (i.e., a vehicle) to be sold at auction to satisfy the obligation, or any part of it.

4. Child Support Security Account or Electronic Funds Transfer: A court may order a payor parent to deposit up to a year’s worth of child support payments in an interest bearing trust account as security for future child support payments. The funds may be drawn on if payments are past due by ten (10) or more days.

5. Contempt: An obligor parent who willfully refuses to pay a child support obligation may be found guilty of contempt of court. A contempt proceeding is generally quasi-criminal in nature and requires a finding of violation of the order beyond a reasonable doubt. Contempt may result in incarceration and/or fines. As a practical matter, this is a last choice in dealing with a defaulting obligor. Proving wilful violation of the order beyond a reasonable doubt is difficult, and although a court can order the citee to jail immediately, a finding of contempt may require several court appearances before the citee is actually incarcerated.

Copyright © 1999 Roy A. Barry, all rights reserved.